ÒElectronic DiscoveryÓ Makes Computer Files a Legal Burden

In the language of lawyers and people who want to sound like them, "discovery" means extracting information. The process of discovery can be arduous, especially in corporate lawsuits where hundreds or thousands of documents must be sorted through. Contrary to what you might think, computers may have made this process harder.Corporations produce a lot of information, and today nearly all of it is stored on computers. This has hugely expanded both the amount of information gathered and the length of time it can be kept around. In the days of paper, office space limits and good sense kept people from storing too much for too long. Today, a single hard drive can hold the equivalent of several rooms of paper files. This is cool until a judge orders you to pick through every last bit of it. As early as 1980, though, courts were requiring corporations to produce electronic versions of documents even if they had already been provided on paper. And a 1993 Federal Rule requires corporations engaged in lawsuits to let opposing counsel know what data is available for evidence discovery. If the corporation is unable to get its electronic act together early in the trial, it's possible that electronic evidence unearthed later (such as e-mail) will provide what one lawyer dryly calls "a rich source of impeachment material." In some cases, one side can even be granted direct access to the otherÕs computer systems.Electronic documents requested in discovery can include not only e-mail but word processing files, databases, backup tapes, financial spreadsheets, system logs, and erased but recoverable files and file fragments. (Even completely ÒerasedÓ disks can sometimes be deciphered by experts.)Many companies have no overall strategy for keeping track of their electronic data, which can make a large discovery request very costly. This cost often becomes a strategic factor. Some lawyers and judges fear that electronic discovery is becoming a punitive tactic, a means of intimidation. It's another way to make a lawsuit hurt Ñ both in terms of immediate resources needed to respond to the demand for documents, and in possible damage to the company's long-term reputation if they donÕt fully comply. Nobody being sued wants to give the impression that they have something to hide.The phrase "too much information" comes readily to mind when pondering the situation. One paper I read on this subject mentioned a case in which 32 million electronic files were delivered in the discovery process. This kind of overkill would not happen if, in the words of the paper's author, the company had a "reasonable electronic data retention policy" in effect. He means that they should learn to throw stuff out.ThatÕs right, the pain of electronic discovery is pointing toward a refreshing strategy: get rid of your data. (This doesn't mean, the lawyers caution, that only the potentially incriminating should be destroyed, or that one should start cleaning house when a lawsuit is in progress. That approach can backfire if a court sees it as destruction of evidence.)Might this catch on? Perhaps a data cleanliness craze will sweep the world. IÕll ditch my 20 megabytes of archived e-mail. Creative types will dutifully discard obsolete revisions. Maybe, just maybe, people will even pull down their Òunder constructionÓ Web pages that havenÕt changed in a year.The efficiencies of computers tempt us to keep every digital bit we create. As the legal system is discovering, this has a price. The price is human time, the very thing that computers are supposed to be so good at saving. ItÕs now apparent that this savings is far from automatic, that we must actively refrain from making extra work for ourselves.This is harder than it sounds. Info-tidiness has strong appeal, but so does the urge to keep things Òjust in case.Ó IÕm all for a data purge if you donÕt start with the 10,667 files on my hard drive. I need them all, honest.Sites in my SightsIf you have a high tolerance for corporate legalese, you can learn more about the data recovery business at the Electronic Evidence Discovery, Inc. website (www.eedinc.com). And if youÕre wondering what might keep people from altering computer records in the middle of a case, check out one Òdigital notaryÓ service (www.surety.com).Don't Just Sit There, Sit There and Do SomethingEver wonder if you have an FBI file? The Federal government has its own rules about storage and distribution of information, and some of them were written with the public in mind. The Freedom of Information Act is the law of the land on extracting Federal information, but most Americans donÕt know how to use it. A heap of FOIA resources, including a link to the FBI, can be found at the Electronic Privacy Information Center (www.epic.org/open_gov/).

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